Dye v. Thomas More Univ.
| Decision Date | 02 September 2021 |
| Docket Number | Civil Action 2:19-CV-087-CHB |
| Parties | DR. KATHY DYE, Plaintiff, v. THOMAS MORE UNIVERSITY, INC., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on Defendant Thomas More University's Motion for Summary Judgment [R. 36], and Plaintiff Kathy Dye's Motion for Partial Summary Judgment [R. 50]. The parties have filed respective response and reply briefs to the pending motions [R. 53; 54; 57; 58], and the motions are now ripe for resolution. For the reasons explained below, the Court will deny TMU's Motion for Summary Judgment and grant Dye's Motion for Partial Summary Judgment.
Plaintiff Kathy Dye was a tenured faculty member at Thomas More University (TMU) and taught classes in the MBA and education programs. Dye began teaching at TMU in 1997 and received tenure in 2009. For the 2014-2015 academic year, one of Dye's colleagues, Dr. Anne Busse, was appointed chair of the department that Dye worked in. Prior to this, Dye and Busse had no problems in their working relationship. [R. 40 p. 9, 200; R. 29 p. 47] According to Dye, a couple interactions with Busse that year caused Dye to feel increasingly anxious toward Busse. [R. 29 p. 79] In the summer of 2015, Busse completed a “Faculty Evaluation” of Dye and under “suggestions for improvement” Busse noted a “lack of collegiality and cooperation, ” evidenced by faculty members commenting that Dye came across as “frosty” or “argumentative” and Busse suggested Dye work on being “more courteous and friendly.” [R. 29-1 p 22] Busse also criticized Dye's communication (“inconsistent, ” “unnecessarily vague ” “delve[s] into distracting minutia”) and noted that Dye had “missed four of ten department meetings, ” although two were excused. [Id. p 22] The evaluation noted her strengths (“very knowledgeable and passionate about her subject matter ” “cares about each student's learning, ” “has leadership talent”) as well as various other problems or incidents that had occurred and, in Busse's opinion, indicated some need for improvement. [Id. pp. 21-23] Ultimately, Busse recommended that Dye continue as a tenured faculty member. [Id. p. 23] In August 2015, Dye and Busse met to discuss the evaluation. [R. 32-1 p. 1] This evaluation, in turn, led Dye to experience even more extreme anxiety towards Busse, particularly with respect to bi-weekly department meetings that Busse organized and chaired, and that nearly all of Dye's colleagues attended. Nevertheless, following the meeting to discuss Dye's evaluation, she attended that month's department meeting, but missed the next one, held two weeks later, on September 9. [R. 31-1 p. 2] After missing that meeting, Dye visited a nurse practitioner (Ms. Shelby Thornton, APRN) who wrote her a letter stating that Dye was experiencing anxiety “caused from situations that occur within her work department, including attending of meetings and some interpersonal communication with co workers.” [R. 30 p. 1]
On September 21, 2015, Dye sent an email to Busse and Dean Kathleen Jagger (also the Vice President of Academic Affairs) defending herself from many of the “criticisms” Busse had outlined in the evaluation and informing Busse and Jagger that [R. 32-1 p. 2] The next day, she sent Dean Jagger the letter from her nurse practitioner, Ms. Thornton. [R. 32-2] When the next department meeting came around, on September 23, Dye emailed Busse and Dean Jagger early in the morning, reporting she had woken up [R. 32-3] And she did attend that meeting, as well as the next one. [R. 31-1] The morning of the next department meeting on November 4, Dye emailed Busse and Dean Jagger, reporting that she had lost sleep “because of anxiety about attending today's department meeting” and she was “troubled by the fact that I must subordinate personal health and wellbeing to meet the expectations of current department leadership” or else be “penalized, ” and she wanted to schedule a meeting with both of them “to resolve this problem.” [R. 32-4] The next day, Dye emailed Dean Jagger again, telling her that “[t]wo things are high on my priority list, ” which were “[d]iscussion with you and Anne [Busse] about the extreme anxiety she triggers” and her “performance review for the 14-15 academic year.” [R. 32-6]
About a week later, Dean Jagger apparently had not responded because Dye resent the email, explaining [R. 32-10] A few days later, on November 13, she met with Dean Jagger and, in a follow-up email to Dean Jagger and Laura Custer (the Director of Human Resources) Dye reported that her and Dean Jagger had discussed “generalities about the tension between Anne Busse and me and the anxiety she triggers” and to only “further compound [Dye's] anxiety, ” Dean Jagger had told her that the letter from Ms. Thornton “was not sufficient to document the medical nature of my anxiety.” [R. 32-11] Dye was now quite concerned that she had “missed several recent department meetings . . . because of my anxiety”[1]but did not have “sufficient” medical documentation to excuse her for those absences and requested “clear guidance on next steps” to resolve the situation. [Id.] That evening, Dean Jagger responded but did not provide any requested “guidance on next steps, ” although she did mention that Dye's file contained “no recommendations for accommodations from any health providers.” [R. 31-22 p. 2]
On the morning of November 18, Dye emailed Busse and Dean Jagger, again reporting that she was “awake long before my alarm because of anxiety about how I might be perceived at the department meeting” later that day and that her “anxiety affects my behavior at the meeting and my health” and she had gotten “insufficient sleep - because of anxiety about the meeting” but would try to attend anyway, and she did. [R. 32-13; R. 31-1 p. 2] The morning of the next scheduled department meeting, on December 2, Dye emailed Busse, Jagger, and Custer, informing them that she had been “awake for several hours trying to deal with a severe headache and other physical difficulties” and that she would not be attending the meeting, but if she needed to provide a medical statement to be excused then she would schedule an appointment with her doctor. [R. 32-15] The next day, Dye, Dean Jagger, and Custer met to discuss the issue of Dye's anxiety surrounding the department meetings and Busse. [R. 32-17] In a follow up email, Custer provided Dye with some guidance on “the type of information that health care providers give employers to help with understanding a condition or a request for an accommodation.” [R. 32-19 p. 4] Over the next few weeks, Dye followed up multiple times asking questions, seeking clarification on certain details, and expressing more anxiety over the ongoing “uncertainty.” [R. 32-19; 32-20] Dye continually expressed a request for some kind of “protection” from any negative consequences for having missed past and potentially missing future department meetings. [R. 32-20 p. 1; 32-21 p. 1]
On December 17, Dye visited Ms. Thornton and Dr. Asha Sharma, who wrote a note explaining the physical manifestations of Dye's mental condition and requested the “following accommodations to prevent anxiety and panic attacks: flexibility to not attend departmental meetings when symptoms of anxiety and panic attacks are present” and that they “anticipate the duration of the accommodations to be indefinite.” [R. 30 p. 2] Dye provided the note to Dean Jagger on January 13, 2016, [R. 32-23] and Custer and Jagger responded, denying the accommodation request because it was “indefinite” in duration and, instead, required Dye to attend a “fitness for duty” examination the next week to “get a second opinion.” [R. 32-24] On January 20, 2016, [2] Dye met with Dr. Davies who recommended that she be evaluated by a mental health professional, Dr. Tom Davis. [R. 30 p. 3]
In the meantime (while waiting for her appointment with Dr. Davis) Dye inquired on February 2, 2016, with Dean Jagger and Custer as to whether she would still be expected to attend department meetings and whether she had any “protection” before completing the mental evaluation. [R. 32-25] Jagger and Custer responded, stating TMU's “institutional response” to her questions (as well as other related requests Dye had raised earlier) and explicitly denied her accommodation requests, taking the position that attendance at the department meetings were an “essential function” and that until TMU could “verify with a second opinion” they were “unable to guarantee any protection against failing to complete the essential duties of the job.” [R. 32-25 p. 3] Dye responded that she had thought they were starting a “collaborative discussion to resolve a very difficult situation” but she was “disappointed that this discussion doesn't seem to be a possibility.” [R. 32-25 p. 1] When Dye explicitly asked to be excused from the February 3rd department meeting, Dean Jagger responded that ...
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